Inviting Trouble: The West May Come to Regret the International Criminal Court's Indictment of Sudanese President Omar al-Bashir

The announcement that an indictment is pending against Sudanese President Omar al-Bashir has been greeted with enthusiasm in Western capitals. But international justice can be fickle. If the new international criminal court (ICC) doesn't show more responsibility than have similar institutions, the tables may soon turn on those applauding the loudest.

First the good news: The ruling clique in Sudan deserves all the condemnation the world can muster. The crimes perpetrated by the Khartoum government and the Janjaweed militia, which acts as its surrogate in the Darfur region, seem to beg for precisely this type of international prosecution. If, as ICC prosecutor Luis Moreno-Ocampo has said, "the decision to start the genocide was taken by Bashir personally," no rational observer should shed a tear over this particular defendant.

Now for the bad news: International criminal law suffers from what Queens University's Darryl Robinson has called an "identity crisis," sandwiched between human rights law and criminal law. The entire discipline emerged in the 1990s with the creation of special tribunals for the former Yugoslavia and Rwanda. The notion that international legal norms would now move from soft, empty platitudes to hard, enforceable punishment was celebrated as a triumph of human rights. The tribunals and prosecutorial offices were staffed by legalists trained in a school of thought whose entire raison d'etre was to put an end to impunity and to vindicate long-suffering victims.

The dominance of human rights lawyers in a criminal justice context has, in turn, led to what Columbia Law School scholars George Fletcher and Jens David Ohlin have labelled a "legality deficit." Criminal law, at its philosophical core, is a system that respects the autonomy of individuals. While its overall goal is to protect society, it does so by assuming that all persons are morally responsible for their actions. We therefore limit our prosecutions to ensure real individual guilt, and we resist using indictments as a means for teaching society a lesson, no matter how necessary that lesson might be.

The crime of genocide provides a prime example of the human rights, rather than the criminal justice, mindset of the ICC. In the court's governing statute, the definition of genocide is not based on the gravity of the offense or on the collective nature of the violence, as it was at Nuremberg, but rather it is premised on a perpetrator's hateful intent toward an identifiable group. Accordingly, virtually any hate crime -- including one by a lone, misguided individual in peacetime -- constitutes international law's most serious offense.

Central to the notion of war crimes is the notion of command responsibility, which was developed in order to hold battlefield leaders responsible where they knew of, but failed to prevent or punish, the culpable acts of subordinates. The Yugoslavia tribunal has expanded this concept considerably. In what is considered by human rights advocates a creative move aimed at increasing the vigilance of military authorities, the tribunal has dispensed with the need to show a link between the fault of the commander and the crimes of the foot soldiers.

In several notorious cases, the failure of an officer to punish individual soldiers, out of an overriding concern to bring a rogue unit under control, has led to a conviction of the officer. Likewise, prison guards who are newly assigned to a facility notorious for atrocities previously committed by lower ranking guards, and who conscientiously keep their distance from any such misconduct, have been held responsible for the very atrocities they avoided. These and other anomalies aimed at protecting victims by expanding the net of potential convictions have led Harvard Law School's David Nersessian to write a cynical critique entitled, "Whoops! I committed genocide."

Moreover, it would surprise no one if the human rights lawyers at the ICC were to follow their cousins at the UN Human Rights Council in exercising political bias. While Omar al-Bashir seems like an appropriate head of state to target, tribunals exercising universal criminal jurisdiction in Belgium and elsewhere have levelled indictments against the likes of George H. W. Bush for alleged misconduct during the first Persian Gulf War. And in case the political slant of the human rights field wasn't obvious enough, the ICC includes in its definition of crimes against humanity not just mass murder, rape and torture, but the building of settlements in occupied territories. Guess who they have in mind.

While the United States has sought to avoid such manipulations by refusing to ratify the ICC treaty, all the ICC needs for jurisdiction is for a country in which a violent event takes place -- Afghanistan, to name one obvious candidate -- to be a party to the treaty. Needless to say, where the U. S. president goes, the Canadian prime minister may not be far behind. All it takes is a zealous prosecutor with the right political bent.

All of which brings us back to the danger of trusting this kind of international body with a field of law designed to maximize criminal convictions. Sudan's al-Bashir may be a good start. The question is: Where will it all end?